This KY school starts in-person class next week. Parents must sign COVID waivers

Sep. 2--In early June, weeks before COVID-19 infections spiked in the state, the Kentucky Department of Education led a Zoom call explaining to superintendents the extent of their districts' legal immunity if a virus outbreak should bloom in their hallways and classrooms.

"There's been some concerns around a student or a staff member getting sick [with COVID-19] and suing the school district," said KDE legal counsel Todd Allen, explaining the reason for the virtual meeting.

Now, three months later, some districts are trying to ward off that threat by asking parents to sign a waiver, agreeing that the district can't be held liable if their student contracts or is exposed to the novel coronavirus at school. School districts and other state agencies are typically protected by what's called governmental, or sovereign, immunity. In essence, "it prevents school districts from being sued," Allen said, except on rare occasions.

Signing a waiver carries that a step further. In Pulaski County'sScience Hill Independent School District, roughly 350 families have already signed waivers to this effect. Last month, the local school board voted to start in-person classes on Sept. 9, almost three weeks ahead of Gov. Andy Beshear'sSept. 28 recommended start date. State officials maintain that the virus is still too widespread for in-person school to be safe.

Late last week at the K-8 school's open house, parents of students returning to the classroom next Wednesday were asked to sign waivers on the spot, and all did, according to Jimmy Dyehouse, who's the superintendent and school principal. "It went real well. Nobody refused to sign it," he said.

All but 92 of the nearly 450 students will learn in person five days a week, Dyehouse said. And since virus exposure is and will continue to be a risk, parents who don't choose virtual learning have now agreed in writing that the school doesn't bear responsibility if their child, and by extension their family, gets sick.

"If you don't feel like it's safe, then by all means, we want you to distance learn, and that's what the waiver says: I know I had a choice, but I chose to send my child to school and will follow all the protocols and precautions," Dyehouse said by phone. But "if my child gets sick from COVID or any other illness, we're not holding the school responsible."

Even though waivers are common at school to play sports and participate in extracurricular activities, asking parents to sign a coronavirus waiver, for some, feels ethically questionable.

Montgomery County Public Schools elementary teacher Sammi Davis Hatfield, a mother of two, said she isn't comfortable with being on either end of a signed waiver, as a teacher or a parent. Montgomery County schools are slated to open in late September, and, as of now, students won't have to sign a waiver.

"Under no circumstance would I as a parent sign a waiver for my child to attend in person. The risks outweigh my desire for in-person learning," she texted from her classroom at Mapleton Elementary on Friday morning, where she was preparing virtual lessons.

"Signing a waiver may relieve school of its legal obligation to a family if a child becomes ill, but it doesn't relinquish our moral obligation to our families [to protect] a child's health," she said, and "we have no idea what the implications for future health issues might be."

Beshear, who also opposes this type of waiver, echoed that sentiment at his Tuesday daily briefing, saying, "I don't know how we can communicate to a family what all the risks of COVID are when we don't know."

Many Science Hill parents, though, were at ease with the idea at the open house.

"I think what the superintendent has laid out is pretty solid," Sean Patterson, whose son Tucker is going into the 2nd grade, said of plans to protect the health of students and staffers.

Amanda Durham, whose kids are in 6th and 4th grades, also agreed to sign the waiver, understanding "it's not [the school's] fault if they pick it up."

Signers of Science Hill's waiver must agree that the "school district cannot guarantee that my child will not be infected by COVID-19 or other illnesses as a direct or indirect result of in-person education."

By signing it, they "hereby waive and release the school district, its board members, agents and employees from any and all claims of any kind concerning infectious disease arising out of my child's in-person attendance and participation in any school-related and extracurricular activities."

Signing one of these waivers doesn't block a family from suing the district in the future, it just potentially undercuts their case and could be grounds for swift dismissal, since they're clearly acknowledging the risk involved.

Even Dyehouse said, it doesn't immediately "make that big of a difference, but it might prevent a problem down the road."

At the end of the day, "a waiver is just a defense," said Wayne Young, general counsel for the Kentucky Association of School Administrators. And in a court of law, where rulings are fact-based, waivers are of "limited value" if one can prove a teacher was willfully negligent, for instance.

The risk of catching coronavirus in the classroom or as a player on a football team won't diminish completely when more schools will likely reopen with the governor's blessing in late September. That's why even districts that adjusted their calendars in light of Beshear's ask are mulling the idea of requiring waivers. Pulaski County Public Schools Superintendent Patrick Richardson plans to float the proposal to his school board and expects it'll be adopted.

"It's not that I want to scare anybody about coming to school," but, "if we're going to have school, we've got to protect ourselves from those that think we shouldn't be having school," Richardson said.

He couched it more as a necessary compromise: "You have those that feel like everybody's going to die tomorrow because of the COVID virus, and on the other side you've got those that feel like it's all a hoax that's going to go away in November," Richardson said. "That puts us as school districts in a place where we have to prepare ourselves for a lawsuit for whichever side doesn't get the way they want."

Earlier that morning, Richardson had signed a similar coronavirus waiver for his 9th-grade son to play football. And when his district returns to in-person classes, if it's required, he'll sign a waiver for his son to be on campus.

Broadening district liability in the event of an outbreak was championed by state Republican Senate President Robert Stivers earlier this month in a letter to the Kentucky School Boards Association.

In the Aug. 14 letter, Stivers thumbed his nose at Beshear's "one-size fits-all approach," and said, instead, the decision should fall to independent districts. In protecting themselves, "schools should consider asking parents to execute waivers," admitting they understand the inherent risks and "waiving any claim their child might have from alleged exposure to the virus at school."

Stivers also promised that the General Assembly, by way of legislation, would work to fill any "liability gaps" in the upcoming session.

Eric Kennedy, advocacy director for the KSBA, supports local control and expanding district protections, even if it means asking parents to sign waivers.

Young, the attorney with the Kentucky Association of School Administrators, agreed, "it's better to have one than to not have one."

But whether it sets a good precedent is questionable, he said. When "the right for compensation belongs to the injured party, it might be bad public policy to say, well, the parent can give that up on behalf of the child when it's actually the child that lives with the result of the harm," Young said, especially with a novel virus, the long-term health effects of which are still unknown.

Herald-Leader writer Bill Estep contributed reporting.

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